This analysis demonstrates the width of the connection between ‘information’ and an SIO. Accordingly, a large and imprecise range of material would be caught, some (perhaps much) of it with no, or no continuing, operational significance. The prohibition is not limited by time or space and extends to information known to be public. This would make it difficult for journalists to report. The difficulty is compounded because in practice journalists should not know of the existence of an SIO (let alone the details). It is contended on behalf of ASIO that disclosure may be authorised by the Director-General, who has control of ASIO (section 8(1)), in accordance with the performance of the functions and duties, or the exercise of the powers, of ASIO (section 35P(3)(d)). Even if this is correct and could include disclosure to a journalist, the invariable practice of ASIO has been to decline to comment on operational matters.
The impact of section 35P on journalists is twofold.
The first impact is uncertainty as to what journalists may publish about the activities of ASIO without fear of prosecution.As described in the notes to section 35P, recklessness is the fault element for the circumstance described in paragraph (1)(b) and (2)(b)— namely, that the information relates to an SIO. In other words, the prosecution must prove that the person was reckless as to the circumstance that the information relates to an SIO. In this context, section 5.4 of the Criminal Code provides:
A person is reckless with respect to a circumstance if:
He or she is aware of a substantial risk that the circumstance exists or will exist; and
Having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
…
The question whether taking a risk is unjustifiable is one of fact.
If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
This presents a significant challenge in any prosecution.8 Inadvertence would not qualify. However, recklessness can be established in the absence of knowledge. It may be difficult for a person, including a journalist, to decide whether they risk prosecution by making a particular disclosure.9
What would be the effect of ASIO refusing to comment on a journalist’s enquiry? It is arguable that a subsequent disclosure would not be reckless. On the other hand, it could be argued that if the journalist knew of the invariable practice of ASIO not to comment, the enquiry would be of no substance. The media is also concerned that if the enquiry was answered by affirming a link with an SIO, there would be no means of verifying the assertion,10 yet publishing in the face of it would probably be considered reckless.
The result is that reporting on ASIO activities is something of a lottery, although the risk may have been exaggerated in some submissions.11 The uncertainty at the point of possible publication could well have a chilling effect on dissemination of material about security and ASIO’s conduct with no relevant connection to an SIO. This effect may also extend to inhibiting pre-publication discussions about the same material, for example between journalists and their editors.
Whether disclosure by a journalist (or other person) to a lawyer for advice about further disclosures by publication or otherwise is prohibited depends on the proper construction of section 35P(3)(e), which provides that the offences do not apply to a disclosure ‘for the purpose of obtaining legal advice in relation to the special intelligence operation’. The explanatory material indicates that a purpose of the exception was to allow non-participants12 to seek legal advice about suspected activities of ASIO in relation to them.13 Section 35P(3)(e) does not expressly refer to legal advice in relation to the matter of the subject of the offence, that is, the disclosure.14 The width of the phrase ‘in relation to’ suggests that the provision would protect disclosure by a journalist for the purpose of obtaining legal advice about a proposed publication, but that will remain moot until determined by a court.
The second, and more fundamental impact, is that journalists are prohibited from publishing anywhere,15 at any time, any information relating to an SIO, regardless of whether it has any, or any continuing, operational significance and even if there was reprehensible conduct by ASIO employees or affiliates. In this regard, the journalist’s source is not pertinent (it does not matter whether the information came from an insider/whistleblower, an outsider/computer hacker or from some other source).
This is a major departure from the position which has generally prevailed to date in relation to ASIO’s activities. That position is that ASIO employees, contractors and persons who have entered into an agreement or arrangement with ASIO (described as ‘insiders’) are subject to stricter secrecy provisions than outsiders. Section 18(2) of the ASIO Act has always applied in relation to all such persons and, broadly, prohibits the unauthorised disclosure of ASIO information. The only sections of the ASIO Act having a direct impact on ‘outsiders’ such as journalists are section 9216 and the relatively new section 34ZS. Section 79 of the Crimes Act prohibits the unauthorised receipt of confidential information. However, section 79(3) (which deals with disclosures) has been ineffective in relation to secondary disclosures, including publication, by third parties because of the need to identify a duty on the part of the person concerned to keep the relevant information secret17. It appears that few if any journalists have ever been prosecuted for a secrecy offence, either in the context of the controlled operations scheme or for any other Commonwealth secrecy offence relevant in the present context.
The aggravated offence in section 35P(2) creates an additional problem for journalists (or other outsiders). It reads:
Unauthorised disclosure of information—endangering safety, etc.
A person commits an offence if:
the person discloses information; and
the information relates to a special intelligence operation; and
either:
the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation; or
the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.
Penalty: Imprisonment for 10 years.
Note: Recklessness is the fault element for the circumstance described in paragraph (2)(b) —see section 5.6 of the Criminal Code.
Recklessness is also the fault element applicable to paragraph (c)(ii). Thus a journalist with no knowledge or means of knowledge about the SIO, or the effect disclosure would have, would risk imprisonment for 10 years if held to be reckless as to both elements.
These impacts on journalists are not eliminated by any defences or exceptions in the event of publication.18 There is no time limit on the prohibition. The ability to report matters to the Inspector-General of Intelligence Services (IGIS), while an important safeguard against wrongdoing by ASIO, is not a substitute for the role of the media19 and exercising freedom of speech.
The impact on journalists of the operation of section 35P is ameliorated to some extent. The Commonwealth Director of Public Prosecutions (CDPP) takes into account the public interest in making a disclosure when deciding whether to prosecute a person. The following directions20 have been made in this context:
on 29 October 2014 the CDPP issued a National Legal Direction, Prosecuting offences for unauthorised disclosure of information relating to controlled operations, special intelligence operations or delayed notification search warrants, requiring prosecutors to seek the personal approval of the CDPP to any proposed prosecutions of offences against section 35P, and
on 30 October 2014 the Attorney-General issued a direction to the CDPP under section 8 of the Director of Public Prosecutions Act 1983 requiring the CDPP to obtain the consent of the Attorney-General to prosecute a journalist for certain offences including offences against section 35P, where the facts constituting the alleged offence relate to the work of the person in a professional capacity as a journalist.
While these measures should give some comfort to journalists, they are after the event of publication and depend on the exercise of a discretion. They do not provide a defence, or a legal guarantee of immunity from prosecution. The rest of the community, including those affected by ASIO operations and commentators of all kinds, such as academics and bloggers, are subject to the same impact as journalists. The question of whether a person is a ‘journalist’ only becomes critical when there are special rules or procedures applicable in relation to ‘journalists’.
This inquiry considered whether it might be helpful to have a form of pre-publication clearance or a variation of the former D-notice regime (the defunct D-Notice System and the extant DSMA-Notice System in the United Kingdom are discussed in Appendix N of this report). There was no real enthusiasm displayed by the media or ASIO for any such solution. No detailed proposal was put forward that could deal with the difficulties of devising such a scheme.
